NTAADU VRS BOAKYE (J4/32/2024) [2024] GHASC 54 (11 November 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA – AD 2024 CORAM: OWUSU (MS.) JSC (PRESIDING) LOVELACE-JOHNSON (MS.) JSC ASEIDU JSC DARKO ASARE JSC ADJEI-FRIMPONG JSC CIVIL APPEAL NO. J4/32/2024 11TH NOVEMBER, 2024 LAWRENCE YAW NTAADU ……….. PLAINTIFF/RESPONDENT/RESPONDENT VRS STEPHEN BOAKYE ……….. DEFENDANT/APPELLANT/APPELLANT JUDGMENT ADJEI-FRIMPONG JSC: This appeal turns on a simple issue. It is, whether the learned Justices of the Court of Appeal properly exercised their discretion in refusing to stay execution of its judgment pending appeal in this Court. It is common learning that granting or refusing stay of execution of a judgment or decision is discretionary. This is therefore an appeal against the exercise of a court’s discretion. 1 The law in this area is fairly settled. BADDOO JSC sitting in this Court in the case of KYENKYENHENE VRS ADU [2004-2004]1 SCGLR 142 at 154 had cause to refer to CHARLES OSENTON & CO VRS JOSEHNSTON [1942] AC 130 HL as follow: “The law as to the reversal by a Court of Appeal of an order made by a judge below in the exercise of his discretion is well established and any difficulty that arises in due only to the application of well-established principles in an individual case. The appellate tribunal is not at liberty to merely to substitute its own discretion for the discretion exercised by the judge. In other words, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion, had it attached to them in a different way. But if the appellate tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion, in that no weight or no sufficient weight has been given to relevant considerations, such as those urged upon us, by the appellant, then the reversal of the order on appeal may be justified.” The principle has gained large following in many cases in this Court. WOOD JSC (as she then was) SAPPOR V WIGATAP [2007-2008] SCGLR 176 at 697 stated the position this way: “The principles clearly enunciated in the two Court of Appeal decisions in NKRUMAH V SERWAA [1984-84]1 GLR 190 and BALLMOOS V MENSAH [1984-84]1 GLR 725, are that an appellate court would not interfere with the exercise of discretion where the court below applied wrong principles, or the conclusion reached would work manifest injustice or even that the discretion was exercised on wrong or inadequate materials.” See IN RE PARAMOUNT STOOL OF BAMIANKOR; EFFIA IV & ANOR VRS NANA TAIBA II & ORS (2010) SCGLR 37; BUABENG VRS FORKUO 22nd Jan 1970, DIGESTED IN (1970) C.C. 59 CA; OWUSU VRA OWUSU ANSAH [2007-2008] SCGLR 870; TRABOULSI & CO VRS PATERSON ZONCHONIS & CO., LTD [1973]1 GLR 133. 2 This case originated in the High Court, Sefwi Wiawso. It involved the sale of a hotel then called MARCELLINI situate at Sefwi Essam. The Plaintiff/Respondent/Respondent/Respondent, the Plaintiff for short, was the owner of the hotel. Sometime in April 2014, he offered to sell same to the Defendant/Appellant/Applicant/Appellant (herein Defendant). Out of the agreed price of GHC150,000, the Defendant paid GHC40,000.00. The remaining amount of GHC110,000 was to be paid by 31st December 2014. Meanwhile the Defendant was put in possession of the hotel which he started running. He even changed the name from “MARCELLINI” to “OBAAPA HOTEL”. The transaction itself appears not to have been properly written. The receipt for the payment of the GHC40,000 however stated in part: “The Transferee/Stephen Boakye undertakes or promises to pay to the seller the remaining balance of GHC110, 000, 00 on or before 31st December, 2014 without fail. Failure to pay it on the said stipulated time, the Transferor can review the transaction.” Eventually the Defendant defaulted on payment of the outstanding amount. The Plaintiff purported to review the transaction by increasing the price to GHC300,000.00. That, the Defendant failed to pay. The Plaintiff therefore commenced the suit at the High Court. He sought the following reliefs: i. An order for the recovery of the building which is being run as Hotel Obaapa by the Defendant which said hotel Defendant agreed with the Plaintiff to buy but could not pay for the full cost. ii. An order directed at the Defendant to account for the period that the Defendant has operated to hotel, i.e. from 22/04/2014 to date of recovery of possession, and Defendant deposit paid therefrom. 3 iii. An order that Defendant pays for the items/properties destroyed whilst operating the said hotel iv. An order of injunction to restrain the Defendant, his agents, assigns, etc. from further operations at the said hotel v. Further order or orders as this Court may deem fit. The High Court at the end of trial gave judgment in favour of Plaintiff but not in terms of the reliefs sought. The Court was of the view that the recovery of possession of the hotel and the ancillary reliefs were not available to the Plaintiff. Instead, it enforced the supposed review clause on the receipt by ordering the Defendant to pay the sum of GHC300,000.00 subject to the deduction of the initial deposit of GHC40,000.00. Interest was ordered to be paid on the amount fixed. On appeal to the Court of Appeal, the Defendant succeeded in part. The learned Justices took the view that the Plaintiff was entitled to recover the property. They so held and further ordered the Defendant to restore the physical structure of the hotel to its pre- contract state, fair wear and tear excepted. Still aggrieved, the Defendant has appealed the substantive judgment in this Court. In the meantime, his application for stay of execution pending appeal failed in the Court of Appeal. The learned Justices of the Court of Appeal had simply ruled: “This is an application by the Defendant/Appellant/Appellant/Applicant for Stay of execution pending appeal. It is opposed by the Plaintiff/Respondent/Respondent /Respondent. We have considered the submission for the Counsel for the Respondent and all the processes filed by the parties. We are not satisfied that the Applicant has demonstrated that the application be granted. There are no exceptional circumstances. The application is therefore refused.” The Defendant appeals against the above ruling in this Court on the following grounds: 4 a. The ruling/decision of the Court of Appeal was against the weight of documentary evidence/records b. The Court of Appeal failed to exercise their discretion judicially c. The order/ruling of the Court of Appeal was against the natural justice rule, having regard to the fact that, Counsel for the Defendant/Appellant/Applicant/Appellant tendered in an excuse duty. On examining the record before us, none of the grounds of appeal deserves any detailed discussion as they bear little merit. The plaint under the ground (c) is simply that Counsel for the Defendant was not in court and had filed an excuse duty before the Court. Therefore, by proceeding to determine the application for stay, the audi alteram paterm rule was breached. This contention owes must to logic and authority. It fails to recognize that the Learned Justices were seised with his motion paper, the supporting affidavit and the annexures. It was a matter to be fought on affidavit evidence. Nothing was to be said that was not in the affidavit. The ruling is clear that the learned Justices of the Court below considered the entirety of the processes before reaching their decision. The Defendant’s application was to succeed or fail on the processes he had filed and not what Counsel for his side would have said, had he been present. We simply dismiss the ground (c). Grounds (a) and (b) can be taken together. We are told that the learned Justices did not exercise their discretion judicially and that their decision is against the weight of documentary evidence. Naturally, one would expect the Defendant to make reference to document(s) available on record which would have enured to their case and/or destroyed the Plaintiff’s case. In reality however, what the Defendant appears to have meant was that the learned justices had relied on a Sales Book (which the Defendant describes as self-serving) to determine the application against him. 5 Reading the ruling of the Court as quoted above, it is not clear to say that the said document was relied upon to rule against the Defendant. And given that Counsel was not in Court at the determination of the application, we wonder how he arrived at that position. In any case it will appear from the judgment of the Court of Appeal that the learned justices had attached no considerable weight to the said Sale Book in determining the various reliefs. This is what they wrote at page 28 of their judgment about the Sales Book in particular and records in general [page 35 ROA]: “Apart from a couple of receipts tendered at the trial, the record does not reflect the keeping of any proper books of account by the Defendant regarding the running of the hotel. In that sense, an order for account would not achieve any useful purpose as figures are likely to be cooked up.” We do not, from this statement, see how the learned justices would turn round to accord such a considerable weight to the Sales Book as to inform their decision against the Defendant in the application. As is clear from the ruling their Lordships of the Court of Appeal considered all the processes filed by the parties and were not satisfied that the Defendant demonstrated that the application be granted. They found no exceptional circumstances warranting the grant and therefore dismissed the application. The Defendant in this case has failed to demonstrate that the learned Justices failed to exercise their discretion justly. In the affidavit in support of the application for stay, the Defendant had deposed to the following in paragraphs 15 and 19 as follows: “15. That I am advised and verily believe same to be true that, the Court of Appeal never took into consideration the number of years and the quantum of money paid to the Plaintiff for all those years. To that extent, the decision of the Court of Appeal has resulted in substantial miscarriage of justice to us…” 6 “19. That the grant of this application shall create a level playing field for all the litigating parties pending the final determination of the substantive Appeal.” The argument they make before the Learned justices which failed to convince them are the same argument they have put before us forgetting that it is not the business of this Court to substitute our discretion for that the Court of Appeal. It is largely the same arguments that are made before us when Counsel submits at paragraph 20 page 17 of his Statement of case thus: “Furthermore, My Lords, the status quo ante should be maintained in this case/suit pending the final determination of the appeal lodged before the Honourable Supreme Court and same is awaiting determination. The Appellant has been the one operating the Hotel under reference since the year 2014 and has been maintaining same with his own resources…” It seems to us perusing the arguments of the Defendant before us he has merely repeated the arguments made before their Lordships at the Court of Appeal to convince us to reverse their decision, forgetting that, it is not the business of this Court to substitute our discretion for that of the Court of Appeal. It is settled principle that it is not the duty of an Appellant seeking to overturn a decision by the exercise of discretion to merely to repeat the same arguments before the appellate Court in the hope that it would exercise the discretion differently. See LAFFERI (NIG) LTD VRS NAL MERCHANT BANK PLC (2015)14 NWLR Part 1478, Page 64 at 87-88. We find no merit in the Defendant’s grounds (a) and (b) also. On our analysis of the facts and the applicable, we think their Lordships at the Court of Appeal were right on their decision to dismiss the application for stay of execution. The appeal is therefore dismissed. 7 (SGD.) R. ADJEI-FRIMPONG (JUSTICE OF THE SUPREME COURT) (SGD.) M. OWUSU (MS.) (JUSTICE OF THE SUPREME COURT) (SGD.) A. LOVELACE-JOHNSON (MS.) (JUSTICE OF THE SUPREME COURT) (SGD. ) Y. DARKO ASARE (JUSTICE OF THE SUPREME COURT) CONCURRING OPINION ASIEDU JSC: [1]. INTRODUCTION: My lords, this is an appeal against a ruling of the Court of Appeal delivered on the 7th November, 2023. In the said ruling, the Court of Appeal dismissed an application by the Appellant herein praying for an order for stay of execution of a judgment of the Court delivered on the 27th July, 2023. 8 [2]. GROUNDS OF APPEAL: The grounds of appeal, as formulated in the Notice of Appeal filed on the 11th November, 2023, are that: “(a) The ruling/decision of the Court of Appeal was against the weight of documentary evidence/records. (b) The Court of Appeal failed to exercise their discretion judicially. (c) The order/ruling of the Court of Appeal was against the natural justice rule, having regard to the fact that, Counsel for the Defendant/Appellant/Applicant/Appellant tendered in an Excuse Duty.” [3]. FACTS: The facts culminating in the instant appeal are that, sometime in April, 2014, the Defendant/Appellant/Applicant/Appellant (herein referred to as the Appellant) agreed to purchase a hotel belonging to the Plaintiff/Respondent/Respondent/Respondent (herein referred to as Respondent) at the price of One Hundred and Fifty Ghana Cedis Thousand (GH₵ 150,000.00). The agreement between the parties was reduced into writing. By the agreement, the Appellant was to pay the full purchase price of GH₵ 150,000.00 on or before the 31st December, 2014, failure of which the Respondent would be entitled to review the agreement. The Appellant, having made an initial deposit of Forty Thousand Ghana Cedis (GH₵ 40,000.00) to the Respondent, failed to make the outstanding payment of One Hundred and Ten Ghana Cedis (GH₵ 110,000.00) as by the terms of the agreement. As a result, the Respondent reviewed the purchase price upward to Three Hundred Thousand Ghana Cedis (GH₵ 300,000.00). Meanwhile, the Respondent had handed over the possession and operation of the hotel to the Appellant. The Appellant also changed the name of the hotel from “MERCILLINA HOTEL” to “OBAAPA HOTEL.” The Appellant did not make any further payments to the Respondent after the initial deposit of GH₵ 40,000.00. The Respondent, therefore, 9 commenced an action in the High Court, Sefwi Wiawso, against the Appellant for the following reliefs: (i) An order for recovery of possession of the building which is being run as Hotel Obaapa by the Defendant which said hotel defendant [Appellant herein] agreed with plaintiff [Respondent herein] to buy but could not pay the full cost. (ii) An order directed at the defendant to account for the period that the defendant has operated the hotel, i.e., from 22/04/2014 to date of recovery of possession, and defendant’s deposit paid therefrom. (iii) An order that defendant pays for the items/properties destroyed whilst operating the said hotel. (iv) An order of injunction to restrain the defendant, his agents, assigns etc. from further operations at the said hotel. [3.1]. JUDGMENTS OF THE HIGH COURT AND COURT OF APPEAL: At the end of the trial, the High Court gave judgment in favour of the Respondent for recovery of the reviewed purchase price of GH₵ 300,000.00 less the initial deposit of GH₵ 40,000.00) made by the Appellant to the Respondent. Dissatisfied with the judgment of the trial High Court, the Appellant appealed to the Court of Appeal. In a judgment dated the 27th July, 2023, the Court of Appeal allowed the appeal in part. In their judgment, the Court of Appeal concluded that the trial High Court erred in ordering the Appellant to pay to the Respondent the reviewed price of GH₵ 300,000.00. The Court of Appeal reasoned that the Respondent did not pray the High Court for recovery of the said sum of money. Additionally, there was no sufficient 10 evidence on record to justify a grant of the said sum to the Respondent under the general relief, ‘any further order(s) as the court may deem fit.’ Conversely, the Court of Appeal found that the law and the evidence on record supported the Respondent’s claim for recovery of possession of the hotel as indorsed on the Respondent’s Writ of Summons. Accordingly, the Court of Appeal ordered the Appellant to yield up possession of the hotel to the Respondent. Consequential orders were also made by the Court restraining the Appellant from further use of the Respondent’s property to operate “Hotel Obaapa”, and to also restore the physical structure of the Respondent’s building to its pre-contract state, fair wear and tear excepted. [3.2]. Dissatisfied with the judgment of the Court of Appeal, the Appellant further appealed to this Court by a notice of appeal filed on the 28th July, 2023. The grounds of this appeal are that: a. The Judgment of the Court of Appeal, Kumasi and all the consequential Orders made thereof were against the weight of evidence on record. b. The learned Court of Appeal Judges erred in law when they substituted their own decisions or views after setting aside the judgment of the lower Court- High Court-Sefwi Wiawso. Subsequently, on the 21st August, 2023, the Appellant caused to be filed in the registry of the Court of Appeal a motion on notice for an order to stay execution of the judgment of the Court of Appeal dated the 27th July, 2023. By a ruling delivered on the 7th July, 2023, the Court of Appeal dismissed the application by the Appellant for stay of execution. 11 It is against the ruling of the Court of Appeal refusing the application for stay of execution that the Appellant has lodged the instant appeal on the grounds identified in paragraph (2) above. [4]. ARGUMENT OF APPELLANT: In the Appellant’s statement of case filed on the 4th April, 2024, (My Lords, the Appellant has two statements of case on record; one filed on 14th March, 2024 and the other filed on the 4th April, 2024. These statements, however, are substantially the same.) it has been argued by Counsel that there are exceptional circumstances to warrant a stay of the judgment of the Court of Appeal. It has been argued that the Court of Appeal, having found that the trial High Court erred in law by granting the Respondent recovery of the sum of GH₵ 300,000.00, could not have properly proceeded to “reconstruct a case for the Respondent”, thus by granting the Respondent recovery of possession. Again, it has been submitted that the ruling of the Court of Appeal was made in breach of the rules of natural justice as Counsel for the Appellant, who was the Applicant in the Court of Appeal, was not in court on the day of the ruling to move the application for stay. Therefore, having proceeded in the absence of Counsel, and more particularly so when Counsel had written to the Court to explain his absence on health grounds, the Court of Appeal acted in error. Counsel argues that the status quo should be maintained pending the final determination of the appeal since the Appellant has been in possession of the hotel since 2014 and has always maintained the hotel. That the substantive appeal raises arguable points of law, and has a reasonable prospect of success. [5]. ARGUMENT OF RESPONDENT: 12 It has been argued by Counsel for the Respondent, in the statement of case filed on the 29th May, 2024, that the Appellant has been in possession of the Respondent’s hotel for the past ten years. That the Appellant is neither ready to pay the full cost of the hotel, nor is the Appellant willing to yield up possession of the said hotel to the Respondent. That the Appellant’s application for stay of execution and the instant appeal are delay strategies which the Appellant has deployed in order to prevent or delay the Respondent from enjoying the fruits of the Respondent’s judgment. That the substantive appeal by the Appellant raises no arguable points of law as the conclusion reached by the Court of Appeal in their judgment was within the competence of the Court as an appellate Court, and also in line with Rule 32 of the Court of Appeal Rules, 1997 (C.I. 19). [6]. DETERMINATION OF THE APPEAL: In an application for stay of execution, the primary consideration that should influence the court in deciding the matter was what the position of the appellant would be if the judgment were enforced and the appellant succeeded on appeal. If the enforcement would make the appeal, if successful, nugatory then the proper order to make was one staying execution. JOSEPH v JEBEILLE and Another [1963] 1 GLR 387; MENSAH v GHANA FOOTBALL ASSOCIATION [1989-90] 1 GLR 1. The court would also grant a stay of execution if the appellant demonstrates that there are arguable points of law to be canvassed on appeal. ACQUAH v TAGOE [2017-2020] 2 SCGLR 73. The grant or refusal of an application for stay of execution, is at the discretion of the court which is seized with the application for stay. Consequently, an appeal against a ruling by the court refusing an application for stay is an invitation to the appellate court to ascertain whether or not the court below properly exercised its discretion in refusing the application. Accordingly, it is the duty of the appellant to demonstrate convincingly that the court below did not exercise its discretion judiciously in order to warrant an 13 intervention by the appellate court. In dealing with a similar application in the case of ACQUAH v TAGOE (SUPRA) this Court stated at page 76 of the Report as follows: “The Supreme Court as an appellate Court can only intervene with the exercise of discretion if it could be shown that the discretion was exercised on wrong or inadequate material placed before the court which exercised the discretion or if it could also be demonstrated that the court gave no weight to the relevant matters and ignored relevant material in arriving at its decision. If the lower court’s decision was also based on a misunderstanding of the law or on inferences that particular facts existed or did not exist when in fact evidence shows to be wrong, the Supreme Court can interfere.” My Lords, it is my humble view that the Appellant herein has failed to demonstrate that the Court of Appeal erred in the exercise of its discretion to refuse the application for stay of execution on the facts and evidence that came before it. Accordingly, grounds (a) and (b) of the grounds of appeal, are dismissed. It has also been argued on behalf of the Appellant that the Court of Appeal acted in breach of the rules of natural justice when the Court proceeded to give a ruling on the application in the absence of Counsel for the Appellant. Before proceeding to deliver the ruling, the Court of Appeal noted (at page 155 of the ROA) that Counsel for the Appellant was absent and had “presented a medical excuse duty form to explain his absence from Court”. The Court, however, noted that; “The Court has all the Processes and will proceed with the Application in the interest of justice.” The record shows that the Court of Appeal had the benefit of the processes that were filed by both parties in determining the application. A brother to the Applicant, one Samuel Buru, was present in court and represented the Applicant the day the ruling was delivered. It is not in doubt that the Appellant, including Counsel, had notice of the day’s 14 proceedings. Could the absence of Counsel preclude the Court from considering the application? The position of the law is that the court may consider the merits of an application and decide whether or not to grant it once the processes filed are before the court. The application need not be moved formally. REPUBLIC v COURT OF APPEAL; EX PARTE EASTERN ALLOY CO LTD [2007-2008] SCGLR 371. In EX PARTE EASTERN ALLOY CO LTD (SUPRA), the Supreme Court stated at page 373 of the Report that: “But there is no rule of law that a court cannot in such circumstances [when a party is absent in court] elect to decide the motion on its merits, unless it is moved by the applicant who chooses to be absent on the hearing day of the motion…. Therefore, how a motion should be dealt with is within the judge’s discretion, whether a party be present or absent”. Even though it may have been that Counsel for the Appellant herein was not in court on health grounds, this did not take away the Court’s discretion to decide the motion on its merits. The argument by Counsel for the Appellant that the Court of Appeal could not have properly proceeded to rule on the application when Counsel was not present to move the application, therefore, fails. Ground (c) of the notice of appeal is accordingly dismissed. [7]. THE PROPRIETY OF THE APPEAL: From the record, the application for stay of execution of the judgment of the Court of Appeal, was heard and determined by the Court of Appeal on the 7th day of November 2023 as appears at page 155 of the record. Barely ten days after, that is on the 17th November 2023, the appellant herein lodged the instant appeal against the order of the Court of Appeal refusing to grant the application for stay of execution. The notice of appeal, which can be found at page 157 of the record, does not appear to have been filed 15 with the leave of the Court of Appeal or this court. Although counsel for the Respondent did not question the propriety of the notice of appeal, since it involves the jurisdiction of this court to entertain the appeal, this court has the power to raise the issue of the propriety of the notice of appeal in view of the provisions in article 131(1) and (2) of the Constitution, 1992. Fatal vs. Wolley [2013-2014] SCGLR 1070. Articles 131(1) and (2) of the Constitution provides as follows: 131. Appellate jurisdiction of the Supreme Court (1) An appeal shall lie from a judgment of the Court of Appeal to the Supreme Court, (a) as of right in a civil or criminal cause or matter in respect of which an appeal has been brought to the Court of Appeal from a judgment of the High Court or a Regional Tribunal in the exercise of its original jurisdiction; or (b) with the leave of the Court of Appeal, in any other cause or matter, where the case was commenced in a court lower than the High Court or a Regional Tribunal and where the Court of Appeal is satisfied that the case involves a substantial question of law or is in the public interest. (2) Notwithstanding clause (1) of this article, the Supreme Court may entertain an application for special leave to appeal to the Supreme Court in any cause or matter, civil or criminal, and may grant leave accordingly. The question that needs to be answered is whether the appellant needed leave before filing the notice of appeal. This question has been answered in a number of decisions emanating from this court; some of which will be analysed. In Coker vs. NDK Financial Services Ltd. [2017-2020] 1 SCGLR 766, this court held that: “Article 295 of the Constitution, 1992 defined or interpreted the word ‘JUDGMENT’ to include ‘an ORDER’ or ‘DECREE’ of the court. The word ‘judgment’ as used under article 16 131 (1)(a) therefore applied mutatis mutandis to an ‘order’ or a ‘decree’. No distinction was made with regard to the nature of the order or decree in question. The paramount consideration for the invocation of article 131 (1)(a) is whether or not the appeal to the Court of Appeal from which the appeal to this Court emerged was one against a judgment or decision of the High Court in the exercise of its original jurisdiction. In the Kwasi Owusu case supra, the appeal before the Supreme Court was not an appeal to the Court of Appeal against a decision of the High Court exercising its original jurisdiction but rather, it was an appeal against a ruling of the Court of Appeal on a repeat application for stay of execution. It did not therefore fall under article 131 (1)(a) of the Constitution, 1992, so the Supreme Court dismissed the appeal on the ground that the appellant should have sought special leave of the Court first before appealing which he did not do. The issue that surfaces for determination in the instant matter is; whether or not the appeal that was filed as of right in this Court by the appellant is a civil cause or matter in respect of which an appeal has been brought to the Court of Appeal from a judgment of the High Court in the exercise of its original jurisdiction. If the appeal is a civil cause or matter in respect of which an appeal had been brought to the Court of Appeal from a judgment of the High Court in the exercise of its original jurisdiction, then as counsel for the appellant rightly contended, he did not require any leave of the Court of Appeal or the special leave of this Court to appeal as provided under article 131 (2) of the Constitution and section 4 (2) of the Courts Act, 1993 [Act 459] but rather he could appeal as of right as provided under article 131 (1)(a). However, if the appeal to this Court is not a civil cause or matter in respect of which an appeal had been brought to the Court of Appeal from a judgment of the High Court in the exercise of its original jurisdiction, then the appellant should have sought the special leave of this Court as provided under article 131 (2) of the Constitution, section 4 (2) of the Courts Act, 1993 [Act 459] and rule 7 (4) of the rules of this Court [C.I. 16]. 17 Having carefully perused the record before us, it is our firm conviction that though the appeal before us is a civil cause or matter, it is not one in respect of which an appeal had been brought to the Court of Appeal from a judgment of the High Court in the exercise of its original jurisdiction as provided under article 131 (1)(a) of the Constitution”. In General Legal Council & Another vs Koduah [2017-2020] 1 SCGLR 1065, Appau JSC, sitting as a single judge of this court reasoned at page 1072 of the report that: “The Applicants’ motion before this Court for special leave to appeal against the ruling of the Court of Appeal, was not premised on the fact that they were out of time as implied by the Respondent by his paragraph 13 of the affidavit in opposition filed on 14/03/17. The application was filed twenty (20) days after the delivery of the ruling in question. The fact is that the application did not emanate from a case that originated from the High Court or Regional Tribunal for which the Applicants could appeal as of right as provided under article 131 (1) (a); neither did it emanate from a case that originated from a court lower than the High Court or the Regional Tribunal for which the Applicants needed leave of the Court of Appeal first as provided under article 131 (1) (b). Article 131 (1) is therefore inapplicable to the Applicants. The application is rather an off-shoot of a case that originated from the 2nd Applicant as provided under section 18 of the Legal Profession Act, 1960 [Act 32]. Being a case that did not fall under either of article 131 (1) (a) or 131 (1) (b) of the 1992 Constitution, or section 4 (1) (a) or (b) of Act 459, the only means by which the Applicants could reach this Court on an appeal is by recourse to article 131 (2) of the 1992 Constitution; section 4(2) of Act 459 and rule 7 (4) of C.I. 16 as reproduced above. The application before the Court was therefore made within jurisdiction”. Again, in James David Brown vs National Labour Commission & Another Civil Appeal No. J4/74/2018, dated 19th June 2019, this court pointed out that: 18 “The framers of the Constitution have provided three different ways to lodge an appeal to the Supreme Court. These are appeal as of right, appeal with leave of the Court of Appeal and special leave to appeal obtained from the Supreme Court. Appeal as of Right Under Article 131(1)(a), a party can file an appeal as of right from the Court of Appeal to the Supreme Court if he can satisfy the following requirements: i. The appeal is in respect of a civil or criminal cause or matter. ii. The appeal has been brought to the Court of Appeal from the judgment of the High Court or a Regional Tribunal. iii. The High Court was exercising its original jurisdiction. … Appeal with the Leave of the Court of Appeal Another way to trigger the appellate jurisdiction of the Supreme Court is by seeking leave of the Court of Appeal. In ordinary parlance, leave implies praying to the court to grant permission to file the appeal …. Leave of the Court of Appeal arises in circumstances where a civil or criminal cause or matter started in a court lower than the High Court and the Court of Appeal is satisfied that the case involves a substantial question of law or is in the public interest…. Special Leave Clause 2 of Article 131 provides that notwithstanding the previous clause the Supreme Court may entertain an application for special leave to appeal to it. This means that the mandate of granting leave to appeal to the Supreme Court does not lie solely with the Court of Appeal. The Supreme Court also can grant leave for a person to bring his appeal 19 - see the case of Dolphyne v. Speedline Stevedoring Co. Ltd. and another [1995-96] 1 GLR 532 where the court held that the word ‘notwithstanding’ meant that without being affected by the provisions of clause (1) of article 131 of the 1992 Constitution, the Supreme Court may entertain an application for special leave to appeal”. [7.1]. As stated above the subject of this appeal is the ruling by the Court of Appeal in which the court refused an application for stay of execution. That order or ruling did not come to the Court of Appeal from the High Court or the Regional Tribunal in exercise of its original jurisdiction. That ruling is an off-shoot of the judgment delivered by the High Court which was varied by the Court of Appeal and whose execution the appellant sought to unsuccessfully to stay at the Court of Appeal. That being so, the appellant cannot appeal that ruling of the Court of Appeal as of right under article 131(1)(a) of the Constitution. Further, since the ruling is not a judgment from a cause or matter commenced in a court lower than the High Court or Regional Tribunal, the appellant cannot come under article 131(1)(b) of the Constitution. The appellant can only appeal to this court by obtaining the special leave of this court under article 131(2) of the Constitution as was held in the authorities cited above. It is my opinion that the failure to obtain the special leave of this court before filing the appeal amounts to a breach not only of the Constitution but also of the Courts Act, 1993, Act 459. The appeal is therefore void and a nullity and the notice of appeal does not properly invoke the jurisdiction of this court. [8]. CONCLUSION: From the foregoing discussion, it is my humble view that the appeal is not properly before this court. But even on the merits, the Appellant herein has not made out a case to justify an interference by this Court with the ruling of the Court of Appeal which dismissed the Appellant’s application for stay of execution. The appeal fails in its entirety and is hereby dismissed. 20 (SGD.) S. K. A. ASIEDU (JUSTICE OF THE SUPREME COURT) COUNSEL NANA OBIRI BOAHEN ESQ. FOR THE DEFENDANT/APPELLANT/APPELLANT WITH DAVID BOAKYE-MENSAH ESQ. BARIMA AGYEKUM HINNEH ESQ. FOR THE PLAINTIFF/RESPONDENT/ RESPONDENT WITH GLENNA LOIS BOAKYE YIADOM ESQ. 21